Probate & Missing Persons: Recent Developments (Part 1)

11/08/2023

In this series of articles, Ollie Murrell and James Fuller provide an update on recent developments in relation to the tools available to executors, administrators, and trustees, when dealing with the estate of a missing person.

Benjamin Orders: A Broader Probate Jurisdiction?

On 1 September 1892, P.D. Benjamin stepped on a train in Aix-la-Chapelle, France. He was never seen or heard from again. His father, David Benjamin, died just a short time later; his residuary estate was left to his children living at his death.

In Re Benjamin[1] the trustees of David Benjamin’s estate sought an order giving them liberty to distribute the estate on the footing P.D. Benjamin predeceased his father. Joyce J duly granted that order in a form now known as a “Benjamin Order”.

The Benjamin Order became a useful tool for executors, administrators and trustees, particularly following World War Two. The volume of missing persons – particularly airmen – caused a spike in reported cases when bereaved parents failed or refused to update wills. This resulted in significant estates being left to beneficiaries who had long since been missing but were not conclusively dead. This was short lived and Benjamin Orders soon fell out of fashion.

Following the 2008 financial crash, Benjamin Orders enjoyed a renewed popularity in the commercial context. They are now deployed in relation to pension and investment schemes, and are particularly useful in corporate insolvencies and special administrations. In the probate context, Benjamin Orders occasionally see an outing, but in an age of interconnectivity, there are few cases in which the traditional application is suitable. However, the Benjamin Order has uses well beyond the traditional application in the commercial context, which begs the question: why not in the probate context?

The Basics

In the probate context, a Benjamin Order allows an estate to be distributed on the footing a missing beneficiary is dead, or that all the claimants or creditors have been ascertained. The Court will usually require an inquiry into the missing persons, the scale and nature of which will be dictated by the circumstances of the case. The usual course is to instruct a specialist probate search company. If granted, a Benjamin Order will protect the trustees from a claim should the missing persons reappear. Protection does not extend to recipients of the distribution.

In both the probate and commercial context, the Court is guided by Nourse J’s in Re Green’s Will Trusts[2] He relevantly stated at [462]:

“I do not think that the question whether such an order should be made depends on whether or not there will be administrative inconveniences caused by the trustees retaining the fund. I think it depends on whether in all the circumstances the trustees ought to be allowed to distribute and the beneficiaries to enjoy their apparent interests now rather than later.”

The commercial Benjamin cases have utilised this passage to allow evolution in the law. The probate cases remain rooted in missing person cases where there is a strong probability of death. This caused an issue for the executors of a will in Re Vanstone (“the Executors”).

Re Vanstone

In the recent case of Re Vanstone, Ollie Murrell represented the Executors in relation to two residuary beneficiaries (“the Beneficiaries”) of a relatively modest estate could not be traced. Just as in Re Benjamin and Re Green’s Will Trust, the Beneficiaries had not been heard from in decades. Yet, there was a significant conceptual difference: there was no probability the Beneficiaries were dead. Rather, their deaths was just one possibility for two longstanding homeless persons. Despite active addresses on the Electoral Register as recent as 2009, a specialist probate search company failed to locate the Beneficiaries; a task hindered by Covid-19 and the data privacy requirements of local authorities and charities. There was a further hurdle in that, if individuals did come forward, it would be difficult to verify their identities.

The Executors claimed for a Benjamin Order to allow the residue of the estate to be distributed on the footing the Beneficiaries had predeceased the testator. The claim was heard by District Judge Wales, sitting in the High Court in Bristol.

The Executors successfully argued the Court’s jurisdiction extended beyond those cases in which there was a strong probability of death. DJ Wales held a Benjamin Order can be made in cases where there is simply a probability the beneficiaries would never be traced and where further searches are impractical. In reaching his decision, DJ Wales was persuaded to depart from Nourse J’s formulation and considered the administrative cost and inconvenience the Executors would incur. Although DJ Wales noted the outcome may be different if larger sums were involved.

Accordingly, DJ Wales granted a Benjamin Order and directed the Executors to distribute on the footing the Beneficiaries had predeceased the testator.

Comment

Whilst Re Vanstone is not a reported decision, it demonstrates the willingness of the Courts to allow executors, administrators and trustees to utilise Benjamin Orders beyond the traditional scope is apparent. DJ Wales’ decision provides a reminder that equity must be flexible. There is a need for pragmatism and practicality, on the part of both the practitioner and the Court. Re Vanstone indicates the Probate Courts are willing to accept an expansion of jurisdiction, following somewhat belatedly in the footsteps of commercial cases. As any probate practitioner will attest, novel problems frequently arise without any apparent answer. Benjamin Orders may well have a renewed role in solving those problems.

Next week Ollie and James will be considering The Presumption of Death Act 2013 and the recent High Court decision in Re Fisher [2023] EWHC 979 (Ch), [2023] 1 W.L.R. 2294, [2023] All ER (D) 23 (May)

[1] [1902] 1 Ch 723

[2] [1985] 3 All E.R. 455.